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what cause is there to strike a juror simply because they might
actually understand the evidence presented? Isn't that what
society wants, needs and expects from jurors to interpret and
appreciate the evidence presented?
In a driving under the influence of alcohol (DUI) case, relying on the scientific evidence of breath alcohol test results
(BrAC results), the prosecution used its peremptory challenges to remove the only two members of the jury venire with
technical backgrounds. Thereupon, one of the venirepersons
asked the judge:
" Maybe it's just my opinion, but I guess, I don't quite
understand why [the only] two technical people were
rejected by the State. "
The judge responded saying the basis for dismissal was not
stated. The prosecutor replied:
" The State felt that Mr. X as an electrical engineer and
as a supervisor thought as typically people in the situation do ... Just that in my experience as a lawyer, people
in Mr. X's position frequently find themselves of the
opinion that they are smarter than any of the witnesses
and will adjust their opinions as to reject the opinions
of State's experts ... I believe that the prejudice that's
resulted from allowing this excused juror to ask that
question has prejudiced my case, my presentation of
the evidence beyond any question, especially with Mr.
Vosk here who I know is particularly acute at challenging these technical aspects " [6].
The defense objected to the peremptory challenges based
upon a " Batson " type de facto intellectual discrimination argument [7]. Defense counsel argued these juror dismissals
violated the defendant's rights under the Sixth and Fourteenth
Amendments of the U.S. Constitution. The accused has a constitutional right to an impartial jury from a cross section of the
community. Furthermore, in today's society this includes science and technological orientated venirepersons particularly in
criminal cases where the state's primary evidence is scientific or
technological. The judge dismissed the case without prejudice
on different grounds and avoided ruling on the premised violation of equal protection through intellectual discrimination.
Deliberately lowering the jury's intellectual level denies
the defendant equal justice. This discriminatory practice undermines public confidence in the fairness of justice, especially
when the government relies upon science or technology as its
primary evidence. Batson may not be the definitive legal mechanism against these improper challenges, but it and similar
legal theories should be pursued.

Attorney's Educational Obligation
The jury voir dire is a crucial time to educate the juror. The
attorney has a duty and obligation to learn and be knowledgeable in science as well. In order to present the evidence,
the attorney needs to become more than just superficially
18	

knowledgeable in the subject matter. It takes considerable
work. Perseverance is paramount. However, if the attorney
does not comprehend the subject and what is necessary for the
jury to learn and understand, then chances are the jurors won't
learn it either. The attorney's credibility is at issue during the
jury voir dire educational phase. The knowledgeable attorney is confident and has the advantage over both the court and
their adversary. The judge, as with any other individual, wants
to understand the science culminating in a just and fair resolution. The judge will typically provide more time and leeway
for the prepared attorney to present their case. Opposing counsel is usually less prepared which is a detriment.
Science must be accurately and effectively communicated
to the fact finder. The trial attorney should present scientific
and technical evidence from an educator's perspective. The
attorney is the teacher rather than an advocate. The objective
is education - not academics. The attorney must address the
specific science that is the case's focus. Develop the use of metrology and apply it in the courtroom.
Metrology must be explained during jury voir dire and
when the expert witness testifies. Failure to do so will leave the
jury without the ability to seriously consider and understand
the scientific evidence. During the expert witness's testimony,
have the witness devote a significant part to explain metrology, its components and why it is so important to forensic
science.
After educating the fact finder on the science involved, the
attorney resumes their role of an advocate. The preparation
and education process becomes relevant when opposing counsel offers their " science. " The jury will appreciate their science
education during the voir dire process and be better able to
assess the expert witness' credibility. The attorney who is prepared and educated the jury on relevant scientific matters has
earned the jury's respect.

Forensic Metrology
Metrology is the " science of measurement and application. "
It applies to " all theoretical and practical aspects of measurement, whatever the measurement uncertainty and field of
application " [8].
" Forensic metrology is the application of measurements
and hence measurement standards to the solution and prevention of crime " [9]. Unfortunately, " We can never know a
quantity's true value through the act of measurement. Metrology, however, provides an epistemological framework with
which we can understand what measurement results mean
and represent as well as what conclusions they support and
how strongly " [10].

Metrological Concepts
Metrology can be a strong implement of knowledge in the
courtroom because it does cover all aspects of measurements.
Several fundamental examples of metrological terms and concepts are:
Measurand: the quantity intended to be measured.

IEEE Instrumentation & Measurement Magazine	

February 2021



Instrumentation & Measurement Magazine 24-1

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